Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018403-001

10/04/2018

The Complainant is a qualified chef, he was employed by the Respondent restaurant owner from 02/08/2017 to 24/03/2018.

The complaint was submitted to the Workplace Relations Commission on 10/04/2018.

The Complainant provided a chronological list covering all aspects of his employment from start to finish:

02/08/2017 – commenced employment at the restaurant.

25/02/2018 – gave a month’s notice to the owner/manager of the restaurant

26/02/2018 – confirmed that his last working day would be 25/03/2018.

28/02/2018 – received word that his brother was critically ill in hospital in England.

01/03/2018 – Respondent was very understanding and told the Complainant he could have time off to spend with his family.

02 & 03/03/2018 – Business closed due to snow, complainant could not fly to England.

04/03/2018 – Complainant flew to England.

05/03/2018 – Contacted Respondent to keep him updated and informed Respondent that he would be in contact with an update in 2 days’ time.

07/03/2018 – Communicated with the Respondent, informed Respondent he would be returning to Ireland on 13/03/2018 and would return to work the following day, 14/03/2018.

08/03/2018 – Received payslip from previous week. Complainant was not paid for two days of snow, i.e. 2nd and 3rd March 2018.

08/03/2018 – Contacted by Respondent informing the Complainant that there was no need for him to return to work that he had hired a new chef who was starting on 14/03/2018.

08/03/2018 – Complainant responded to Respondent informing him that he would be back on 14th and that any time he was absent due to being in England could be taken from his annual leave entitlement.

08/03/2018 – Respondent replied and informed Complainant that he no longer required his services and that the new chef was due to start on 14th March 2018.

09/03/2018 – Complainant and Respondent agreed to meet on 13/03/2018. The Complainant wanted to know when he would receive his two days’ pay (snow days) and confirmation of when he would receive payment for untaken annual leave entitlement.

13/03/2018 – Complainant and Respondent met. The Complainant was informed that he would receive payment for the two days on 16/03/2018. In relation to holiday pay the Respondent told the Complainant he would have to check the balance with his Accountant and would have an answer to this by 16/03/2018.

16/03/2018 – No communication from the Respondent until late afternoon. The Respondent was unable to inform the Complainant when outstanding payments would be made.

19/03/2018 – The Complainant contacted the Respondent and explained he was still due €337.58 in unpaid wages and €960.00 in holiday entitlement and requested his P45.

20/03/2018 – The Complainant was informed that he would receive €337.58 over the next week or two. In relation to holiday pay the Respondent informed that he would not pay as he claims the Complainant did not work his full rostered hours through the whole of the winter period. The Complainant’s working hours were 8.00am to 5.00pm, he alleges that he was unable to take his break as he was the only chef employed so he worked straight through to 4.30pm and finished then. Nothing was ever mentioned to him in this matter until he brought up the subject of holiday pay when he was leaving.

21/03/2018 – The Complainant called to see the Respondent and explained that he had not received the outstanding wages i.e. €337.58. The Complainant was informed that he would receive this payment on 26/03/2018. The Complainant still has not been paid this amount.

Summary of monies owed to Complainant:

Outstanding wages - €337.58

Holiday pay - €1,215.41

Two weeks’ pay from notice period - €1,538.50

Total - €3,091.49.

The Respondent verbally made the following points.

1.       The Complainant was hired on the strength of his cv which is quite exceptional, he commenced work early in August and initially had some problems with the kitchen porter.

2.       The kitchen porter was moved and the Complainant was involved in recruiting a new kitchen porter.

3.       The Complainant was issued with a contract of employment that he did not sign.

4.       The Complainant was paid weekly a so one weeks’ notice would be sufficient.

5.       The Complainant was given time off for his wedding and stag party.

6.       The Respondent company were very understanding when the Complainant’s brother was ill in England.

7.       In relation to holiday pay i.e. 7.9 days – during the months of November, December and January the restaurant was quiet and the Complainant never worked his full rostered hours – it is “swings and roundabouts”

8.       The Complainant never mentioned that he was unable to take his breaks.

9.       The sum of €337.58 in unpaid wages were posted to the Complainant by cheque.

In relation to the outstanding wages the Complainant maintains he has not received such payment, the Respondent Maintains that a cheque for this amount was posted to the Complainant.

In relation to holiday pay the Complainant maintains that he is owed €1,215.41. An employer cannot grant holiday entitlement in half hour segments. There is nothing in the relevant legislation that mentions “swings and roundabouts” as alluded to by the Respondent.

In relation to the contract of employment I note the Respondent claims this was not signed by the Complainant. There is no legal obligation on any employer to provide a contract of employment. There is a legal obligation on all employers to provide a statement of the particulars of employment to each and every employee within the first two months of employment (Terms of Employment (Information) Act 1994). Such a statement must be signed by the employer but does not have to be signed by the employee.

In the contract presented to the Complainant the section headed Notice reads as follows:

‘In the event that either the company or you may wish to terminate the contract, before its expiry date, one month notice must be given by both parties. Nothing in this agreement shall prevent the giving of a lesser period of notice by either party where it is mutually agreed’.

In this instant case there was no mutually agreed shortening of the notice period. The Complainant was willing to work his full notice period and was prevented from doing so by the Respondent who had hired another chef.

I believe the Complaint is well found and now order the Respondent to pay to the Complainant the gross sum of €3,091.49 under the Payment of Wages Act, 1991.

Such payment should be made within 42 days from the date of this Decision.

Payment of Wages Act.